Ted McWhinney

[Greece, March 18th, 1996]

Mr. Speaker, the recent incident in the eastern Aegean Sea involving Turkey and Greece reminds us that, by virtue of the Treaty of Lausanne of 1923, the further agreement of 1932 and the Paris Peace Treaty of 1947, Greece's sovereignty and territorial title over the Dodecanese Islands, including Imia, are clear and unquestioned in international law.

The European Parliament has now voted to endorse the Greek position by an overwhelming majority. We commend both parties to peaceful settlement of their dispute, and also welcome Greece's acceptance of the jurisdiction of the World Court for this purpose.

[Privilege, March 13th, 1996]

Mr. Speaker, the hon. member can be assured that Parliament has the competence to enact whatever law it wishes subject only to the limits imposed by the Constitution and the charter of rights.

We were discussing the roles and missions of Parliament. The correct arena for the honourable member would be to take up with the House justice committee the question of possible amendments to the Criminal Code in terms of the offence of sedition. That would be a correct route to take and to present reasoned amendments.

It is not for Parliament itself to go backwards to the 17th century and try to set up a parallel system of criminal law covering matters that are properly within the ambit of the Criminal Code.

The member should go to the justice committee if he has views on this and present a project for amendment and see what happens. This is not the correct arena.

[Privilege, March 13th, 1996]

Mr. Speaker, I think that focusing on freedom of speech is leading the debate away from the issue of Parliament's constitutional law. For example, I have very often said things that my audience was not too pleased to hear, but I understand that I must comply with civil law when I make remarks or comments.

Outside this House, members become subject to civil law and they become accountable. Up until now, no attempt had been made to sue this member for what he said outside the House. That is what we are dealing with here. As far as Parliament is concerned, except in circumstances which are so rare now, given how the constitutional law of Parliament has evolved, there is no substantial issue for Parliament to decide. In my opinion, we are limited to the scope of our privileges, as it stands today.

[Privilege, March 13th, 1996]

Mr. Speaker, I thank the hon. member for his question and also for the dispassionate way in which he presented it in a debate which has become too heated on all sides of the House. I will try to respond in the same spirit.

I agree, if the facts which the hon. member cites are correct, that if letterhead was used for a non-parliamentary purpose, that there is a breach of the privileges of the House. However, it probably would come within the nature of trivial abuse; no more serious than perhaps the way in which many members misuse parliamentary letterhead. It would not bring in the gravamen of the offence being alleged against the hon. member.

I have noted the precedent of 1891. I would tell the House that it would meet the classic test of something committed within the rayon of Parliament in the capacity of the minister in the public works department. It simply brings back the issue that in dealing with old precedents they have to be re-interpreted creatively in the light of changed circumstances and the evolution of the concepts of what Parliament can and should do to its members, including opposition members. The precedents have to be interpreted in the light of their creative growth. The trend is clearly to restrict parliamentary powers, not to extend them.

The hon. member said, and I hope he will not mind my correcting him, that Parliament can do whatever it wants. I think the best answer to that is the answer which Chief Justice Coke gave to King James I, that one is under God and the law. One is bound by the constitutional law of Parliament. That is what we are trying to decide today. That is what this debate is all about.

Frankly, the committee on procedure and House affairs would do us a service if it set out coolly, clearly and without passion the limits of parliamentary power today. If it thinks those powers should be restated, let it indicate, on the basis of expert opinion, how it thinks that should be done. However, it would commit a grave error if it attempted to set itself up as a court of law hearing the substance of the alleged offence. That would be beyond the precedents as they now exist, properly interpreted.

[Privilege, March 13th, 1996]

Mr. Speaker, I will limit my answer to Parliament's jurisdiction. I said that the statements made in the member's communiqué had been made outside of the House, and therefore were not covered by parliamentary privilege. He can be prosecuted in civil court.

I only said that it had nothing to do with Parliament. In other words, we are limited to the old impeachment process, which is interpreted in a very restrictive manner nowadays.

The merits of his conversation, of his discourse, have nothing to do with this House today. He is subject to civil court. It is up to him to invoke his parliamentary privilege. I for one believe that his parliamentary privilege does not apply when he is outside of the House or of the parliamentary precinct. This is why I said that this debate, by emphasizing what he said, is going beyond the mandate and powers of Parliament.

[Privilege, March 13th, 1996]

Mr. Speaker, in intervening in this debate I must record that I at times felt I was attending one of Verdi's latter day operas, high opera. Marked sometimes with opera bouffe I find to some extent the levity that was introduced in the matter concerning the potential loss of privileges of a member of Parliament rather disquieting. I take it that it relates to the intensity and the passion of the debate.

I will focus on the roles and missions of Parliament today, which I believe is the issue we should be debating. This includes what the House is competent to do and what it is not competent to do.

The alleged remarks of the hon. member were not made in Parliament, nor were they made by legal definition within the rayon of Parliament which by extension has been known to include government departments and the like. They would probably not be covered by an argument of parliamentary privilege. To express my own opinion, they would not be covered by parliamentary privilege if the member was prosecuted in the ordinary courts.

One of the issues here concerns whether this is a matter for the ordinary courts. In the case of a member of Parliament it would be the civil courts. In the case of members of the armed forces, with whom it is alleged there was some species of collusion, it would be the military courts. I will return to that in a moment.

There has been a great deal of misunderstanding based perhaps on a too rigid and unimaginative reading of old precedents concerning the role of Parliament today. The phrase high court of Parliament has been used but without an understanding of its historical origins or the need to interpret it in the light of contemporary developments in Parliament and in other institutions that borrowed from the same British parliamentary model we borrowed from.

There was an extensive review of Parliament's criminal powers at the time of the impeachment issue in the United States, the so-called Watergate scandal. I was consulted in a pre-parliamentary capacity by the Senate Committee on Campaign Activities, the Watergate committee. I gave opinions which were published at the time. The great advantage of the Watergate scandal for our purposes is the opportunity for discussion of the inherited criminal powers of Parliament which the United States received as part of its general reception of British law.

The basic point revolves around this issue of the impeachment power which was written into the United States' constitution. There is no doubt that in medieval times these were opportunities for political fishing expeditions. There was no real pretence of a criminal offence or anything else involved. It was a judgment exercised by Parliament on the king's ministers in which the subjective evaluation of their motives in exercising their powers was at the core of the decision.

I mention this simply to say that the vestigial powers of Parliament as the high court of Parliament are essentially limited today by the evolution of the precedents and also by Parliament's own deliberate legislative act of passing legislation it is limited to the cluster of offences grouped around impeachment. There is a reason for this. It is the tyranny of the majority that caused successive Parliaments deliberately to limit by law the power to expel members of Parliament.

There is legislation. It sets it out. It sets out the necessity for convictions before the ordinary civil courts for specified offences,

but limited offences, what in contemporary terms we could still call the felonies as they were understood under the common law.

The correct procedure for a legislative body today would see the power of expulsion being limited to acting on a conviction made by the regular civil courts for a specified offence meeting the test of a felony as it existed under the old common law. This has been done simply to discipline the otherwise unregulated use of a majority's power to expel people it did not like. We saw examples of this in continental Europe between the two wars in the last days of the Weimar Republic when it was used disgracefully.

Impeachment as such is not available in the case of a member not being a government minister. Even if we go back to that, it is limited to officers of the crown. I was asked by a senator the other day, I presume not frivolously, whether it still availed. The answer is yes but it is limited to government ministers. In the British Parliament it has not been used since 1840 but is still there.

As to other matters, they are matters for the ordinary courts, but Parliament can act and properly will act if so inclined on the decisions of the civil courts. If a verdict of guilty were to be returned in such a process, Parliament could be seized and exercise its powers, including the powers to expel.

The problem that one sees in the present case is simply that one understands the matters were taken up with crown counsel. It would surprise me if they have not been because I received letters from constituents asking me if there was a prima facie case. I simply said consult or refer to crown counsel. They were referred to crown counsel and apparently crown counsel have decided not to pursue the matter.

If that is so, and it is beyond correction by senior crown counsel, then it seems to me Parliament cannot retry the matter. It is not simply a matter of the limits of competence of members of Parliament to decide difficult issues of the law of evidence and the like. It is a matter that the executive power has been used and exercised to the full, and that is the end of the matter.

I support the reference of this issue to the committee on procedure and House affairs mainly because I believe it will avoid further debates of this sort, which sometimes seem to be without any clear direction. A restatement by the committee of Parliament's power to discipline its own members stated clearly and concisely would be a help to this House.

I hope the committee will not assume it is its function to act as a court of law. I do not think it would do the job very effectively. If there are still remedies before the civil courts then it would be possible for opposition members to utilize those remedies and take the steps themselves. As far as Parliament is concerned, it is my

own opinion that we should obtain legal opinion at defining the constitutional role of Parliament today.

My personal opinion, as expressed in the past, is that Parliament's criminal law powers are limited to impeachment, narrowly construed. In the case of the attempted Nixon impeachment I came to the conclusion that judgment on political acts was no longer part of the impeachment power. These things became moot with the decision of the president to resign and the matter never proceeded.

There are advantages in going to the committee on procedure and House affairs. It may be that the committee, in spite of the opinions I have expressed, will decide that Parliament should resume criminal law powers, in effect control of members that have lapsed effectively with the transfer of erstwhile powers of Parliament to the ordinary courts.

In that case, I would be prepared to read the report and discuss it on its merits. But under the present circumstances I think it has been beyond Parliament's competence to discuss the merits of the alleged act. I think it is not a proper use of our functions. I therefore would welcome constitutional advice, a ruling from the committee on procedure and House affairs.

[Missile Tests, March 13th, 1996]

Mr. Speaker, missile tests by the People's Republic of China in the straits of Taiwan fall athwart recognized international air corridors used by Canadian Airlines, Air Canada and commercial airlines of other states. These air corridors are established under the ultimate

authority of the United Nations specialized agency, the International Civil Aviation Organization.

We should bring to the urgent attention of the governing council of ICAO this interference with the freedom of the air and the danger to the lives of innocent civilian passengers. We should also ask for appropriate sanctions or control measures to be taken within the Chicago Convention of 1944.

[Supply, March 12th, 1996]

Mr. Speaker, I thank the hon. member for Delta for his question. He has shown a keen interest in issues of fisheries for a considerable number of years.

I would be happy to put to rest some of the concerns that he expressed. In no way is the Canadian government humiliated or does it feel humiliated by what has happened.

Some legislation has been passed by the United States congress which makes certain assertions, which are no more than assertions: first, that American vessels have the right of innocent passage through the inside passage of Canada; second, that Canada violated international law by imposing transit licence fees in 1994; and third, that Canada should compensate the United States, in essence reimburse the transit licence fees applied in 1994.

The statement in the American legislation does contain some errors of law which can be easily corrected and fears put to rest. It is also interesting as an example of what might be called the King Canute approach to international law. It is beyond the competence of a national legislature by national legislation to establish a right in international law. It just cannot be done and frankly there is no need to be too concerned over that.

As to the errors of law, they are very simple issues here. The right of innocent passage, to which the U.S. legislation refers, applies under international law to what is called the territorial sea. The territorial sea in the region concerned is measured from the base line, the low water mark, on the west side of Vancouver Island. The inland passage is in fact part of Canada's inland waters or internal waters. It is not subject to the United Nations convention on the law of the sea. International law does not apply to it. It is within our province to control and regulate it, to apply transit fees. We have every right under our law to do so. There is nothing in international law restricting our right to do so.

The inside passage is not part of Canada's territorial sea which is measured, as I have said, from the west side of Vancouver Island. It is part of Canada's internal waters. There is no right of innocent passage, as it is called under international law, through our internal waters. There is no prohibition under national law against our imposing a transit fee in the case concerned.

We have made the following points to the United States government. Canada is not in violation of international law. The waters of the inside passage are Canadian internal waters and no compensation will be paid.

The statements in the United States congressional legislation are interesting but they are simply findings or expressions of opinion of congress. They do not constitute anything more for purposes of international law. In particular they do not authorize an intervention by U.S. coast guard vessels into Canadian waters.

I should remind this House and perhaps the U.S. congress that under the United States constitution and under the separation of powers it embodies, it is for the President of the United States and not for congress to assume responsibility in the execution of foreign policy. The findings in the U.S. legislation are mildly offensive to Canadians but they only express an opinion.

There have been calls on this government to reintroduce the transit licence fee in response to the refusal of the United States to respect the larger Pacific salmon treaty obligations to Canada and the failure to respect the United States role in the maintenance of the Pacific salmon stocks. We also have to refer to the recent failure of the Pacific salmon mediation process.

However, I am happy to tell this House that negotiations are proceeding. There will be a Pacific salmon commission meeting on 1996 fishing arrangements and also a bilateral meeting between our Minister of Foreign Affairs and the United States Secretary of State, Mr. Christopher. Both are scheduled for later this month.

This government will not reintroduce the transit licence fees while these initiatives are under way. That would be an error. However, all options remain on the table. They are under study and if appropriate they will be used.

[Speech From The Throne, March 5th, 1996]

Mr. Speaker, the problem is as follows. If we restrict ourselves to a definition of a certain special status, we are bound to fail. Back home, in my province, history shows that there must be a referendum on such constitutional amendments. There must be some evolution of the constitutional approach.

We must consider reforming the bases of institutions such as Parliament, the Executive Council and its relationship with Parliament, and the Senate, and think about creating a constitutional court. You certainly remember that such an approach was advocated by your professors at the Université de Montréal, including Professor Jacques-Yvan Morin. It is in this context that we must examine the issues advanced by the main forces behind the quiet revolution.

I have tried to show that, where I come from, there is no opposition in principle to Quebec or the demands of Quebecers. But we do want a serious constitutional approach that would include the constitutional demands of all the provinces and all Canadians.

I wish to thank the hon. member for his comments. As it did not seem to be a question, I cannot give an answer.

[Speech From The Throne, March 5th, 1996]

Mr. Speaker, I have a certain amount of past history that I cannot put behind me. I do not believe I have been noted either as a scholar or an advisor for toeing the line.

I was invited by the Prime Minister about a week ago to assume a new job. Eighteen inches of briefing books arrived at my desk; this is included in them. I have read half of those books which is about 3,000 pages. I have noted the subject. I am committed to maintain a viable west coast salmon fishing industry by every means possible.

The member will notice from public statements of the last day or two that we are taking a strong line in terms of maintaining our position under the Pacific coast salmon treaty with the United States. I have examined that problem but I will prefer to save my response until I have a little more experience with those briefing books.

I will assure the hon. member in the spirit of his question that I will do my best to see that we maintain our west coast fisheries.